Opinion of Mr Advocate General Tesauro delivered on 16 December 1993

1 Original language: Italian.

2 Sec the judgment in Case C-365/88 Hagen ECR 1845 (in particular paragraph 17).

3 See Hagen, cited above, in particular paragraph 20; see also the judgments in Case 288/82 Diiimstee [1983] ECR 3663, in particular paragraphs 17 to 19, ana in Case 145/86 Hoffmann [1988] ECR 645, m particular paragraphs 29 to 33.

4 As stated in the preamble to the Convention, in conformity with the provisions of Article 220 of the EEC Treaty.

5 See in that regard the Jenard report on the Brussels Convention (OJ 1979 C 59, p. 1, in particular at p. 13). One might perhaps add that there appear to be no grounds for concluding that an application linked with an action to establish contractual liability in relation to a service provided by an undertaking established in a Member State for a customer in another Member State is not a Community matter, since that application has, in any event, an impact on commercial relations within the Community. That said, the provision in question docs not constitute — as is, moreover, rightly pointed out by the Commission — an obstacle to the fundamental freedoms in respect of the movement of goods and the provision of services provided for by Articles 30 and 59 of the Treaty. The link with those freedoms in fact appears to be too indirect and it therefore seems to me to be unsafe to state, for example, with regard to the present case, that, because of the provisions of the German Code of Civil Procedure at issue in this case, a non-German carrier is impeded from providing services in Germany or a German customer finds it more convenient to use a transport undertaking whose headquarters arc in Germany.

6 Case 137/84 Ministère Public v Matsch [1985) ECR 2681, in particular paragraph il.

7 Judgment in Case C-175/88 Biehl [1990] ECR I-1779, paragraph 13. That principle dates back to the judgment in Case 152/73 Sotgiu [1984] ECR 153, in particular paragraph 11; see also, among others, the judgment in Case 22/80 Boussac [1980] 3427, in particular paragraph 9, which displays certain similarities with the present case.

8 See in that regard, among others, the judgments in Case 167/88 Association des Producteurs de Blé et Antres Céréales [1989] ECR 1653, in particular paragraphs 23 and 24, and Case 22/80, cited above (in particular paragraph 11).